New Jersey Court Answers The Burning Question: Can I Sue The Owner Of An Abandoned Church If I Slip And Fall On The Sidewalk Outside The Church?

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Slip and fall (pd)
The facts and legal issues in sidewalk slip and fall cases sometimes read like they are pulled from law school final exams. In New Jersey, the baseline legal rule is clear — owners of commercial properties generally have a duty to maintain, in reasonably good condition, the sidewalks abutting their property, while owners of residential properties do not. But does a property owner have a duty to maintain its sidewalks when:

  • the property is both residential and commercial, like a multi-family home where one unit is owner occupied and the others are rented (click here for more on that, but the short answer is that it depends on whether the property is primarily residential or primarily commercial ); or
  • the plaintiff is a tenant and sues the landlord after slipping on a sidewalk outside the rental property (click here for more on that, but usually, yes); or
  • the property is a commercial property, final judgment of foreclosure has been entered in favor of the lender, but no sheriff's sale has been scheduled (click here for more on that, but if the lender can be considered a mortgagee in possession, then yes); or 
  • the property is owned by a condominium or common-interest community (click here for more, but generally, yes if it's a private sidewalk within the condominium, no if it's a public sidewalk abutting the condominium); or
  • the property is residential and the fall is caused by sweetgum spikey seed pods that fell from a tree on the defendant's property (click here, but, no).

And now one more can be added to the list thanks to the Appellate Division's decision is Ellis v. Hilton United Methodist Church, where the question presented was whether "sidewalk liability applies to an owner of a vacant church."

Continue reading “New Jersey Court Answers The Burning Question: Can I Sue The Owner Of An Abandoned Church If I Slip And Fall On The Sidewalk Outside The Church?”

When, If Ever, Is A Residential Mortgage Not “Residential” For The Purpose of Foreclosure?

     by:  Peter J. Gallagher (@pjsgallagher)

Believe it or not, this question comes up from time to time in my practice (exciting life, I know). In recent years I have prosecuted many foreclosure actions, but only commercial foreclosures. So the first question I usually ask a colleague who comes to me with a foreclosure  question is: "Is it a commercial or residential property?" When the answer starts with something like, "Well, that is actually an interesting question . . . " then I can almost guess what is coming next. Usually it is some variation of: "It is a home, but they mortgaged it to get money to start a commercial enterprise, so I want to argue that its commercial property." Unfortunately, you usually can't make that argument (at least not successfully), and the Appellate Division's recent decision in City National Bank of New Jersey v. Hodge reminded us all of that fact again.

To begin with, the differences between commercial and residential foreclosures in New Jersey are significant. Most importantly, commercial foreclosures are not subject to the Fair Foreclosure Act, including the various notice requirements that are required for residential foreclosures under the Act. Simply put, New Jersey law provides greater protections for residential owners who are about to lose their homes than they do for commercial owners who are about to lose their place of business. This means that the burdens on lenders seeking to foreclose on a residential mortgage are more demanding, if not entirely onerous.

 

Continue reading “When, If Ever, Is A Residential Mortgage Not “Residential” For The Purpose of Foreclosure?”

Appellate Division Holds That Trial Court Had The Right To Decide If Foreclosure-Related Dispute Was Arbitrable, But Decided It Wrong

by:  Peter J. Gallagher (@pjsgallagher)

Most of the current litigation over foreclosures has played out in the courts, but a recent decision from the Appellate Division, Banquez v. Deutsche Bank National Trust Company, involved a foreclosure-related dispute that was headed to arbitration. Actually, the decision in Banquez sent the dispute to arbitration after the trial court originally held that it could stay in state court where the plaintiff originally filed it. It is an interesting decision on the enforceability of arbitration agreements, particularly on the issue of whether an arbitrator or a court gets to decide the threshold question of whether a dispute is arbitrable.

In Banquez, plaintiff purchased residential property in Linden and executed a note and mortgage to the lender. At the same time, plaintiff signed a separate arbitration agreement with the lender. The agreement gave either party the “absolute right” to demand that any “Claim” be submitted to arbitration. The agreement defined “Claim” broadly and required that any dispute about whether a Claim was subject to the agreement would be resolved by an arbitrator, not a court. The agreement also contained several “Excluded Claims” that would not be covered by the agreement, including actions “to effect a judicial or quasi-judicial foreclosure.” The agreement was silent as to whether an arbitrator or a court would decide whether a purported Excluded Claim would be governed by the agreement. Finally, the agreement contained a class action waver, which prohibited plaintiff from participating in a class action, absent the lender’s consent, if the lender elected to arbitrate a claim. The agreement provided that the validity and effect of the class action waiver was to be “determined exclusively by a court and not by an arbitrator.”

 

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Unless You Have Won The Lottery You Don’t Need To Read This Post

by: Peter J. Gallagher (@pjsgallagher)

The Appellate Division handed down a decision today that will never have any impact on my life. The case — In re. Petition of BofI Federal Bank to Assign Lottery Prize Payment Rights — was a consolidated appeal of four Law Division cases that denied BofI Federal Bank's request to assign certain lottery payments from four separate prize winners.

The appeal involved four winners of the Win for Life scratch off game. (As an aside, I have loyally played this game for years in both New York and New Jersey and never even come close to winning, unless scratching off two "LIFE" symbols seemingly every time means I am getting close.) Under the rules of the game, winners receive a guaranteed prize of $1 million payable in quarterly installments for 18 years and then quarterly payments for the rest of the winner's lifetime. For reasons not disclosed in the opinion, BofI (Bank of the Internet if you are curious) filed petitions seeking approval of the assignment of the last two years of the guaranteed quarterly payments.

 

Continue reading “Unless You Have Won The Lottery You Don’t Need To Read This Post”

Hell Hath No Fury Like . . . An Angry Litigant And Former Fiance?

by:  Peter J. Gallagher

Courts don't often impose sanctions for frivolous litigation, but when they do, it usually involves something unusual (apologies to John Winger). Unusual — and perhaps even unfortunate — would be the only way to describe the facts of a recent decision from the Appellate Division that revived a party's request for legal fees in a case involving a failed (alleged) engagement and the return of a (purported) engagement ring that the recipient initially claimed to have lost, but later (apparently) found.

 

 

Continue reading “Hell Hath No Fury Like . . . An Angry Litigant And Former Fiance?”

Good Vibrations: Ticketmaster Not Responsible For Fans Failure To Get Prime Seats To Beach Boys Concert

by: Peter J. Gallagher

Wouldn’t it be nice if Ticketmaster had to reimburse you every time you did not get the seats you wanted to a concert? God only knows that Ticketmaster would not be happy with this policy, but it would be fun, fun, fun for the rest of us. Unfortunately, a New Jersey court recently struck down a Beach Boys fan’s efforts to hold Ticketmaster liable under this theory. In Mierzwa v. Wal-Mart, Inc., et al., plaintiff went to a self-serve Ticketmaster kiosk located inside a Walmart store — the opinion is silent on whether he drove to the Walmart in his little Honda or little deuce coupe — to purchase “reserved seats” for an upcoming Beach Boys concert. He alleged that, because a Wal-Mart employee was not immediately available to assist him in completing the purchase, he missed out on the “reserved seats” and had to settle for “outer perimeter" tickets. Plaintiff sued Ticketmaster under the New Jersey Consumer Fraud Act (“CFA”) because he allegedly was "unable to obtain the choicest reserved seats."

The trial court dismissed the complaint, calling it the "the most frivolous complaint [it had] ever seen." Specifically, the trial judge held that "[t]here was no contract to provide [plaintiff] with specific seats, it was to provide him with an ability to enter his order and then give him the best seats available at the time his order was entered[.]" The Appellate Division affirmed, holding that the CFA requires proof of three elements — unlawful conduct by defendant, an ascertainable loss by plaintiff, and a causal relationship between the unlawful conduct and the ascertainable loss — and that Plaintiff had not offered any evidence in support of any of them.  For this reason, the court shut down plaintiff’s efforts to hold both Wal-Mart and Ticketmaster liable.

New Jersey Supreme Court Refuses To Hear Challenge To Waiver Rule

by:  Peter J. Gallagher

The New Jersey Supreme Court has denied a request by a group of challengers to the so-called Waiver Rule (N.J.A.C. 7:1B-1.1, et seq.) — which allows the New Jersey Department of Environmental Protection (”DEP”) to waive certain environmental regulations on a case-by-case basis — to review an Appellate Division decision upholding the rule.  On behalf of amicus New Jersey Business and Industry Association, Porzio helped to defend the Waiver Rule before the Appellate Division.     

As we previously reported here, the Waiver Rule is not a blanket waiver of all regulations. Instead, a waiver will only be available when one of four criteria are met: (1) a public emergency has been formally declared; (2) conflicting rules between Federal and State agencies or between State agencies are adversely impacting a project or preventing an activity from proceeding; (3) a net environmental benefit would be achieved; and/or (4) undue hardship is being imposed by the rule requirements. N.J.A.C. 7:1B-2.1.  Moreover, the Waiver Rule identifies 13 rules and requirements that cannot be waived under any circumstances.

A group of Appellants challenged the Waiver Rule on several grounds, but the Appellate Division rejected the challenge and held that the Waiver Rule was a proper exercise of the DEP's rule-making authority.  The New Jersey Supreme Court has now refused to hear the case, which leaves intact the Appellate Division's decision.